Manyam Investment Co Ltd v. Tsui Siu Fong

CACV000003/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 3 OF 1973

(On appeal from O.J. 2997 of 1972)

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Coram: Huggins and McMullin, JJ.

Date of Judgment: 14th March 1973.

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JUDGMENT

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Huggins, J.:

1. This is an appeal against a decision of Mr. Justice Li allowing an appeal against an order of Mr. Registrar Jones giving leave to defend in the action. The plaintiff company sues the Defendant for possession of premises which were let by the Plaintiff to the Defendant under the terms of an agreement in writing. Before the summons for summary judgment was filed the Appellant filed a Defence. In that Defence it was not denied that the plaintiff company was the landlord. Some question of the Plaintiff's title has been raised before us, but it has not seriously been pursued and we are satisfied that this point is not open to the Appellant here.

2. There has been some dispute as to the precise terms of the Agreement, a document which was in the Chinese language. The original document filed in the proceedings - in an affidavit put in by the Plaintiff - was a copy of what purported to be a true copy. However, we accept the original Agreement, put in by the Defendant, as being the document which is binding upon the parties. Again, unfortunately, there is some doubt about the precise interpretation of some of the clauses in the Agreement, but we do not think that any of the doubts which arise are material to the decision of this appeal.

3. We must, of course, accept the translations which appear on the papers before us, and on these translations we have no doubt at all that this document gave no option to renew. However, we are happy that this is an appeal against the decision of a judge who is well acquainted with the Chinese language and who therefore, if he had had any material doubts whatever about the proper interpretation of the Agreement, would have made those doubts known.

4. The tenancy was for a term of five years, commencing from 25th November 1967 at a monthly rent of $800. It was suggested to us that the agreement as reached by the parties was that there should be an unlimited tenancy, but that manifestly must be wrong because we learn from Bacon's Abridgment, which is at least three hundred years old, that there cannot be a tenancy for an uncertain term. The main contention of the Appellant arises from the clause which says (and we accept this as being a sufficiently accurate translation):

"Separate negotiation will be made after expiry of the term."

The contention is, in effect, that that gave the tenant an option to renew the agreement at a rent to be agreed. We are satisfied that it gives no such option and, in any event, that would not be an enforceable option because it left the rent to be agreed and provided no machinery for settling it in default of agreement.

5. It has been urged upon us that pursuant to an arrangement provided for by the Agreement the Appellant has constructed a cockloft in the premises at a cost of $10,000, and she maintains that she would not have spent that money if she had thought she was getting only five years to enjoy the cockloft. That may be so, but the parties saw fit to put their agreement in writing and we are bound by the writing. In our view it is quite clear that unless the parties reached a further agreement before or after the expiry of the term then the Appellant had no right to possession after 24th November 1972.

6. This appeal must, therefore, be dismissed.

14th March 1973.

Representation: